Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

Although the intention of the French legislator was to make the undertaking's entire value chain accountable, no further details were provided on the definition of suppliers or subcontractors. Consequently, some experts have suggested taking as a reference the definition of subcontractors provided by the Law of 31 December 1975 , which defines subcontracting as the transaction whereby a contractor …

Value chain accountability

Although the intention of the French legislator was to make the undertaking's entire value chain accountable, no further details were provided on the definition of suppliers or subcontractors. Consequently, some experts have suggested taking as a reference the definition of subcontractors provided by the Law of 31 December 1975 , which defines subcontracting as the transaction whereby a contractor entrusts, by subcontracting and under his or her responsibility, to another person - the subcontractor - the performance of all or part of the contract for services or part of the public procurement contract concluded with the project owner. The same commentators define suppliers as all natural or legal persons who supply goods or services to an undertaking.

The Commercial Code only imposes a duty of vigilance on subcontractors or suppliers with whom an established business relationship exists. As pointed out by the Constitutional Council, the notion of an “established commercial relationship” is not unfamiliar to undertakings: it is expressly referred to in Article L. 442-1, II of the Commercial Code, which punishes the sudden termination of such a relationship . Legal precedents handed down on the basis of this article specify that an “established commercial relationship” refers to a relationship that is ongoing, stable and regular, and in which one party can reasonably anticipate a certain continuity of business with its commercial partner in the future. In terms of the duty of vigilance, however, it has been ruled that no indication of an established commercial relationship can result from a minority holding by one undertaking in the capital of another, or from the presence of the former on the board of directors of the latter .

The Conseil constitutionnel emphasized that, by excluding from the scope of the vigilance plan subcontractors and suppliers who do not have an “established commercial relationship” with the undertaking subject to the obligation to draw up such a plan and the companies it controls, the legislator had not infringed either the principle of equality before the law, or the entrepreneurial freedom of the parties concerned .

Some associations have argued that undertakings should be required to publish a list of their suppliers and subcontractors from the moment the plan is put in place. The court wisely rejected these requests. On the one hand, the judge recalled that the Constitutional Council had ruled that the 2017 law did not infringe entrepreneurial freedom precisely because it did not require undertakings to “make public information relating to their industrial or commercial strategy”. However, under Article L. 151-1 of the Commercial Code, interpreted in the light of Directive No 2016/943 of 8 June 2016, information relating to named customers and suppliers falls under the protection of business secrecy. In addition, the undertaking's list of suppliers and subcontractors can cover thousands of undertakings and fluctuate over time. Finally, it was not demonstrated in the case in point to what extent their identification on the date the plan was drawn up and published would be necessary for its implementation and evaluation, as the undertaking could adopt appropriate measures according to specific criteria relating to such suppliers, service providers and subcontractors, classified where applicable according to certain criteria such as their sector of business, geographical location, structure and size or resources .

Law No 75-1334 of 31 December 1975 on subcontracting, JORF of 3 January 1976.

Cons. constit., 23 March 2017, LawLex202200001718JBJ.

CA Versailles, 1 December 2022, LawLex202300011618JBJ.

CA Paris, 5 December 2023, LawLex202300014265JBJ.

Compliance

109. Value chain accountability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

109. Value chain accountability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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